Hunter Smith OpEd on birthright citizenship

By Hunter Smith

Nov 24, 2018 | 7:00 PM

Hunter Smith

President Donald Trump has always made it clear to the American public that he favors strict regulations regarding legal and illegal immigration.

Most recently he stated in an interview with Axios that he believes it to be within the president’s power to unilaterally end “birthright” citizenship via an executive order despite the fact that the policy is provided explicitly for in the Constitution.

Advertisement

According to the Center for Immigration Studies, there are at least 30 other countries that grant birthright citizenship, despite President Trump’s claim that the U.S. is the only country to do so.

The claim prompted widespread backlash from experts questioning whether President Trump actually has the authority to execute such actions, especially in terms of birthright citizenship. The birthright citizenship clause appears in the Fourteenth Amendment to the federal constitution, passed in the wake of the North’s victory over the South in the Civil War.

In the Supreme Court case U.S. v. Wong Kim Ark in 1898 the Court ruled that a child born to Chinese citizens in San Francisco was considered a U.S. citizen because the first clause of the Fourteenth Amendment protected his right to citizenship because he was born on American soil.

Thus, children born to people who are not legally in the country are still granted U.S. citizenship despite their parents’ legal status. Critics of the law argue that illegal immigrants come to the U.S. to have children born who can then use their citizenship status to help their parents and other family members legally immigrate under family reunification policies.

In addition to widespread criticism by Democrats, some Republicans have pushed back against President Trump’s proposed use of an executive order. Most notably, Speaker of the House Paul Ryan, R-WI, has gone on record saying that in order to remove the birthright citizenship clause, the proper constitutional amendment process would have to be undertaken.

However, the Trump administration has continued to assert that the president has this power. Vice President Mike Pence claims the Supreme Court has never ruled specifically on whether the “subject to the jurisdiction of” portion of the clause applies to those who illegally enter the country.

Recently, President Trump announced a new set of rules giving himself the authority to block asylum status for illegal immigrants. The new rules are likely targeting the Honduran caravan heading toward the U.S. border, but this is uncertain considering that the Trump administration has declined to comment on which countries will be affected by the decision. Similar to the birthright citizenship issue, legal scholars claim that the decision violates a major principle of federal asylum that states a country should address each asylum claim on its own merits.

The Trump administration is deriving its authority for this matter the same way it did for the widely-publicized travel ban, also known by many as the “Muslim Ban,” claiming national security needs. The revised ban was challenged in the Supreme Court but was ultimately upheld in a 5-4 decision earlier this year. Specifically, the majority decision stated that the president held this authority as a result of the delegation of power regarding immigration policy by Congress over a long span of time via the Immigration and Nationality Act.

The only path forward for Trump to end birthright citizenship is to issue an executive order and force the Supreme Court to determine if the Article II powers laid out for the president stretch as far as providing him autonomous power to amend the Constitution. Given the specificity of the language describing the amendment process in Article V, it is doubtful that even a favorable Court majority would find enough ambiguity to allow this. The Court would almost surely rule against such a claim.